Non-payment of income tax may soon become prosecutable under Prevention of Money Laundering Act

January, 23rd 2015

The government may prosecute those accused of evading taxes under the Prevention of Money Laundering Act (PMLA) as part of a wide ranging crackdown on black money. Further, non-declaration of foreign bank accounts and assets may also be made a criminal offence, according to people who have been briefed on the thinking within the tax authorities and the finance ministry.

Failure to pay income tax could become prosecutable under anti-money laundering laws if the amount evaded exceedsRs 50 lakh, according to a person aware of the deliberations.

Under laws currently in place, neglecting to pay income tax is a compoundable offence, that is, offenders can end proceedings by paying a penalty.

Failing to pay service tax, in certain specific situations, and excise duty are criminal offences even now.

Such acts could be added to the list of offences to which PMLA is applicable, known as 'predicate offences'.

The apex bodies in charge of direct and indirect taxes, the Central Board of Direct Taxes (CBDT) and Central Board of Excise and Customs (CBEC), have held initial consultations to identify offences and define a threshold of evasion beyond which PMLA could be brought into play.

Some of these measures could be part of the forthcoming Budget, some of the people cited earlier said. But a final decision would be taken only after a detailed analysis of the possible impact of such steps on the fragile investment sentiment which the Modi administration is endeavouring to improve, said a government official privy to the development.

"There have been some discussions... We are examining as to what could be adequate threshold for these offences," said the official.

Concealment of income, non-disclosure of foreign assets including bank accounts, giving false evidence and non-deposit of tax deducted at source are some of the offences that could make it to the list of crimes that could become a predicate offence under PMLA.

"Making tax evasion an offence liable to prosecution is conceptually sound but caution needs to be exercised to ensure that these provisions are not misused," said Pratik Jain, Partner, KPMG.

The government faces pressure from the Opposition as well as the judiciary to demonstrate effective measures to tackle black money. The Special Investigation Team on black money headed by Justice MB Shah has suggesting designating income-tax evasion as a criminal offence.

As far as indirect taxes are concerned, clandestine removal and misdeclaration of goods, under-invoicing, availing credit by resorting to fraud, collecting service tax and excise duty but not depositing it with the government and other offences that invite prosecution could make it to the list of predicate offences. Customs offences such as over and under-invoicing of goods are already in the ambit of anti-money laundering law.

During the 2014 election campaign, Modi, as BJP's PM candidate, had made the alleged prevalence of a vast quantum of black money -- particular fund kept abroad - part of a narrative of massive corruption supposedly tolerated or even encouraged by the previous government. Modi had also promised vigorous steps to retrieve black money.

"It (applying PMLA to tax evasion) would have to be a political call," said another official adding that all aspects need to be weighed, especially the possible impact on investment.

India, which is a member of the Financial Action Task Force, is obliged to designate these offences as tax crimes and bring them under the ambit of its antimoney laundering law in line with the latest global standard prescribed by an inter-governmental body founded by the G7 countries to develop policies to combat money laundering and terror financing.

The global plan to bring income-tax offences under the anti-money laundering law was unveiled in February 2012.

Many countries have already incorporated such offences in their money laundering laws. The new government had discussed these proposals ahead of its first budget in July but was not keen to take them up in a hurry as there was little time for detailed discussion.

If these offences become scheduled offences under the anti-money laundering law, they will attract rigorous imprisonment of three to seven years and a fine of up to Rs 5 lakh. Usually, trial is also faster as offences under PMLA are tried in special courts and the onus to prove innocence lies on the accused.

At present launching prosecution for tax offences is a cumbersome process and bringing it under the PMLA could give tax authorities powers to combat black money.